An Overlooked First Amendment Milestone: The Copyright Fight

An Overlooked First Amendment Milestone:

The Copyright Fight Over the Rodney King Beating Video

By Steven Perry and Jordan Segall

Shortly after midnight on March 3, 1991, a plumber named George Holliday was jolted awake in his

Los Angeles apartment by multiple police sirens and the roar of a hovering helicopter. Holliday

grabbed his new Sony Camcorder, stepped out on his balcony and began to record the beating of

Rodney King. While most of us can readily visualize the searing images on that videotape even

today, far fewer would recall that the tape’s widespread broadcast led to a copyright infringement suit

by George Holliday against CNN, NBC, CBS, ABC and others. And even fewer would be aware that

the lawsuit itself was a landmark event, for the federal judge who presided over the case became the

first judge in U.S. history to rule explicitly that the First Amendment provides an independent

defense to a copyright claim – regardless of whether the challenged use was “fair” under the

Judge Irving Hill’s 1993 opinion is little known because it was issued from the bench over the course

of a two-day hearing and was never published – until 2016, on the 25th anniversary of the King

beating. See Holliday v. CNN, et al., 1993 WL 13953406 (C.D. Cal. June 10, 1993); Holliday v.

CNN, et al., 1993 WL 13953407 (C.D. Cal. June 11, 1993); Holliday v. CNN, et al., 1993 U.S. Dist.

LEXIS 21123 (C.D. Cal. 1993). Readers of Judge Hill’s opinion will see that the social and legal

issues that Hill addressed in 1993 remain with us today. See, e.g., Holliday, 1993 WL 13953406 (Tr.,

p. 110) (describing the tape as capturing “what has been a consistent civic, moral and governmental

problem for decades: the alleged mistreatment of minorities in our urban areas by the police.”).

This article: (1) describes the chronology of events provided by Judge Hill at the summary judgment

stage; (2) recaps the Court’s opinion granting summary judgment for the defendants; (3) discusses

Holliday’s appeal to the Ninth Circuit and the parties’ eventual settlement; and (4) explores whether

Judge Hill’s analysis is less, or more, relevant today than it was 25 years ago.

Steven Perry is a partner at Munger, Tolles & Olson LLP, also in Los Angeles. Mr. Perry was counsel of record for

ABC and CBS in the Holliday matter. You can reach him at [email protected].

Jordan Segall is an associate at Munger, Tolles & Olson LLP in Los Angeles. You can reach him at

[email protected]m.

The Chronology

March 3, 1991 (12:30 a.m.)

George Holliday creates a 9 minute, 21 second videotape of a violent confrontation between Rodney

King and officers from the Los Angeles Police Department and the California Highway Patrol.

March 3, 1991 (2:00 a.m.)

Holliday calls CNN in an unsuccessful effort to contact someone with CNN’s “Newshound”

program, under which amateur photographers were paid for videotape footage.

March 4, 1991 (noon)

Holliday calls local television station KTLA and tells an assignment manager that he has a videotape

of an arrest that had happened over the weekend. The KTLA employee asks Holliday to bring the

tape to the station so that it could be copied. There is no discussion of payment.

March 4, 1991 (1:00 p.m.)

Holliday drops off the original tape at KTLA. There is no discussion of payment.

March 4, 1991 (6:00 p.m.)

A KTLA reporter tapes an interview with Holliday at his apartment. There is no discussion of

payment.

All times are Pacific (and are approximate). The dates and events are taken from Holliday, 1993 WL 13953406 (Tr.,

pp. 36-59) and from the parties’ summary judgment submissions.

March 4, 1991 (10:00 p.m.)

KTLA airs about 90 seconds of the tape on its 10:00 p.m. newscast.

March 4, 1991 (10:00 p.m.)

KTLA (which had an arrangement with CNN under which CNN could use footage aired on KTLA)

contacts CNN just prior to the initial newscast and describes the beating footage. CNN reviews the

KTLA story and asks for, and receives, a “clean feed” of the entire videotape.

March 4, 1991 (10:30 p.m.)

CNN calls Holliday and asks permission to show the tape; Holliday says yes. CNN says it will send

a release form and a check for $150. Holliday later testifies that he thought the payment only covered

a one-time airing. He never signs the release form and never cashes the check.

March 5, 1991 (6:15 a.m.)

Representatives of ABC and CBS separately call Holliday at his home and ask for a copy of the

videotape. Holliday tells them that they need to obtain a copy from KTLA. There is no discussion of

payment. Holliday later testifies that he has no memory of these conversations.

March 5, 1991 (9:00 a.m.)

Holliday visits KTLA and asks for the tape because he has been receiving calls from other media

outlets. KTLA keeps the tape but offers Holliday $500 for exclusive rights to the tape. Holliday

subsequently cashes the check, but then testifies that he had only granted KTLA the right to possess

the original tape, not to show it or allow others to show it.

March 5, 1991 (morning)

NBC calls Holliday and asks if it can broadcast the beating tape. Holliday says yes, but tells NBC to

get the tape from KTLA. NBC contacts KTLA, which refuses to provide the tape. NBC calls

Holliday again and asks to purchase the rights to broadcast the tape for $500. Holliday says that he

doesn’t need the money, but he agrees that NBC can broadcast and duplicate the tape. NBC then

begins to air the tape, using CNN footage taped off the air by an NBC affiliate in Phoenix. A few

days later, Holliday cashes NBC’s check for $500. Holliday subsequently testifies that he has no

memory of the discussion that led him to receive the check from NBC.

March 8, 1991

KTLA tapes an “interview” of Holliday, not for broadcast purposes but to help establish KTLA’s

rights to broadcast (and, if it chooses, to allow others to broadcast) the beating videotape. Holliday

Judge Hill found Holliday’s testimony on this point to be “so bizarre as not to be worthy of belief.” Holliday, 1993

WL 13953406 (Tr., p. 50).

agrees during the taped interview that KTLA has these rights, but he later testifies that he was

suffering during the interview from “pressure and fear.”

May 1991

Holliday hires a lawyer, who registers the videotape with the Copyright Office and sends out more

than eight hundred cease-and-desist letters, most or all of which offer to license the videotape for an

unspecified fee.

April/May 1992

One year later, Los Angeles erupts in six days of rioting after the acquittal on assault charges of four

officers involved in the King beating. Fifty-five people die in the riots, which results in over

$1 billion in property damage.

May/June 1992

Holliday retains new counsel, who files a copyright infringement lawsuit against CNN, KTLA, ABC,

CBS, NBC and Turner Broadcasting.

The Summary Judgment Motions

After the close of discovery, each defendant filed a motion for summary judgment that contended

that: (1) Holliday had consented to the defendant’s use of the videotape; (2) Holliday was estopped

by his conduct from asserting a copyright claim against the defendant; (3) the defendant’s use of the

videotape was “fair” under the Copyright Act; and (4) regardless of whether summary judgment was

appropriate under grounds (1)-(3), summary judgment was required because the First Amendment

precluded any recovery for copyright infringement under the unusual circumstances presented by this

case. The motions were supported in part by declarations from the defendants’ employees who had

spoken with Holliday about the videotape.

Holliday opposed each defendant’s motion on a variety of grounds. He claimed, for example, that he

had only granted KTLA a non-exclusive license to air the tape for a single evening, had not given

permission to KTLA to duplicate the tape or to provide it to other media outlets, and had not licensed

any other defendant’s use of the tape. Holliday also contended that the defendants had not

established fair use, noting that the fair use defense is an “equitable rule,” not a “license for corporate

theft, empowering a court to ignore a copyright whenever it determines the underlying material

contains material of possible public importance.” See Plaintiffs’ Opposition to KTLA’s Motion for

Summary Judgment, filed April 2, 1993, at 9-11, quoting Twin Peaks Productions, Inc. v.

In what the Ninth Circuit would later refer to as “television synecdoche,” the 1992 riots also led to a series of copyright

suits involving the footage of the beating of truck driver Reginald Denny. See Los Angeles News Service v. CBS

Broadcasting, Inc., 305 F.3d 924, 929 (9th Cir. 2002) (“In this age of television news, it is frequently the image

accompanying the story that leaves an event seared into the viewership’s collective memory. The riots that shook Los

Angeles in April 1992 are bookended by two such images: the footage of police officers beating motorist Rodney King,

which led to the trial and verdict that sparked the rioting, and the footage of rioters beating truck driver Reginald Denny,

which through television synecdoche has come to symbolize in a few moments the multiple days of violence that swept

over the city.”)

Publications Int’l, 778 F. Supp. 1247, 1250 (S.D.N.Y. 1991) (hereinafter “Twin Peaks”) (internal

citations omitted).

Holliday also argued (with some force) that the fair use question should be resolved at trial given that

the defendants had used “the heart” of the beating videotape, over and over again. Id. at 11-12.

Finally, Holliday responded to the defendants’ First Amendment defense by arguing that: (1) there

was a second videotape that defendants could have licensed; (2) the defendants could have reported

on the beating by interviewing Holliday, his wife and his neighbors; and (3) as a matter of law, no

separate First Amendment defense exists because “First Amendment concerns regarding use of

copyrighted materials are subsumed within the fair use analysis.” Id. at 14, citing Twin Peaks, 778 F.

Supp. at 1252.

Holliday’s opposition was supported by excerpts from depositions and

interrogatories and by declarations from Holliday.

Judge Hill’s Opinion

On June 10, 1993, Judge Hill delivered his tentative opinion from the bench from around 10:00 a.m.

until approximately 3:30 p.m., with a break for lunch. Judge Hill began with a lengthy account of the

relevant facts and then provided his tentative ruling that each defendant’s motion should be granted

on four separate grounds.

Judge Hill first found it to be undisputed that Holliday had consented to each defendant’s use of the

videotape. The evidence was especially strong with respect to KTLA, in light of Holliday’s decision

to cash two checks from the station and his admission during a taped interview that he had licensed

his footage to KTLA. For many of the same reasons, Judge Hill further held that Holliday was

estopped from asserting claims for copyright infringement against the defendants because Holliday

had led them to believe they had permission to broadcast all or any part of the video. The court also

held that no triable issue of fact was created by Holliday’s testimony that he could not recall the

conversations with the NBC, CBS, ABC or CNN representatives who had provided declarations

recounting their discussions with Holliday.

Third, Judge Hill held that each defendant’s use of the beating videotape was a “fair” use, after noting

that the fair use provision in the Copyright Act identifies news reporting as one of its purposes, that

the tape reflected a matter of significant public concern (the “subject of police treatment of minorities

in America’s cities”), and that Holliday, as an amateur photographer trying out a new camcorder,

received “more than the customary price” for the rights he provided to KTLA and NBC.

Grounds (1) through (3) represented familiar territory in copyright cases. Near the end of day 1 of

the hearing, Judge Hill tackled a rather more novel question: did the First Amendment independently

preclude Holliday’s copyright claim? Hill noted that both the Ninth Circuit and Nimmer’s copyright

The district court in Twin Peaks had held a defendant liable for copyright infringement that had published a blow-by-

blow synopsis of the highly popular “Twin Peaks” television program. Id. On appeal, the Second Circuit affirmed many

of the District Court’s holdings, but it added an important gloss on the First Amendment issue. See Twin Peaks

Productions, Inc. v. Publications Int’l, Ltd., 996 F.2d 1366, 1378 (2d Cir. 1993) (observing that First Amendment

concerns are encompassed within the fair use doctrine “except perhaps in an extraordinary case,” such as, “perhaps,” the

Zapruder footage of the Kennedy assassination). The Second Circuit’s opinion issued only a few days before the two-day

hearing in Holliday on the motions for summary judgment and was not available to the parties or the Court.

treatise had suggested that when broad use of a visual work is “necessary to democratic discussion,”

the First Amendment requires that copyright protection give way to unfettered access. 1993 WL

13952964 (Tr., p. 16). Judge Hill acknowledged that a First Amendment defense to a Copyright Act

claim should be confined to “vital” and “very exceptional” graphic works “where words cannot serve

the democratic purposes.” Id. Hill would place such a “severe” limit on the First Amendment

defense because “the property interest involved in copyright protection is an important and precious

one, and if you destroy it, you destroy certain incentives for artistic and news creation.” Id. at 17.

Judge Hill relied primarily on two facts in explaining that the video of King’s beating satisfied this

high standard. First, like the Zapruder film of the Kennedy assassination, or Ronald Haeberle’s

photographs at My Lai, the searing images of the King beating offered the public a unique insight

into a matter of extraordinary public importance. The Court explained that the Holliday tape had

“dramatized in actual motion pictures, apparently for the first time in our history, what has been a

consistent civic, moral and governmental problem for decades: the alleged mistreatment of

minorities in our urban areas by the police.” Id. Indeed, it appeared to Judge Hill that “in terms of

national interest and democratic dialogue, the King beating tape may be as important or even more

important” than the My Lai photographs. Id. Second, Holliday’s videotape contained the only

audible recording of the King beating. These factors made it “intolerable” for Holliday to have the

power to block the tape’s wide public dissemination. Id. Hill concluded by urging the Ninth Circuit

to “separately consider” his First Amendment analysis on appeal, and he noted that his analysis

presupposed that Holliday had not consented to the use of his video, was not estopped, and that fair

use had not been established. Id.

Judge Hill resumed the hearing on June 11, 1993 and, after a lengthy argument, adopted his tentative

ruling. That same day, Judge Hill issued a brief written order that granted the defendants’ motions

for summary judgment and that incorporated the two-day transcript by reference. See 1993 WL

13952864.

The Ninth Circuit Appeal and Ultimate Settlement

Holliday timely filed a Notice of Appeal to the Ninth Circuit. His opening brief on appeal, which

contained a detailed description of the evidence, nevertheless failed to include more than a handful of

record cites. His principal argument was that the evidence of oral license grants was “disputed and

ambiguous” and should be presented to a jury. Holliday also contended that the representatives of

NBC, CBS and ABC who had provided declarations about their conversations were employees of the

local affiliates of those networks, who could and did negotiate solely on behalf of the affiliate, not the

network.

Holliday also engaged in a full-blown attack on Judge Hill’s First Amendment analysis. Holliday

argued that: (1) he was “willing and ready to negotiate” a license and should have been able to

receive “tremendous financial rewards” from such licenses; (2) the defendants had used the videotape

footage for commercial purposes, not to further the democratic debate that Judge Hill had suggested;

and (3) even under Nimmer’s First Amendment analysis, Holliday should have received

remuneration through a compulsory license arrangement.

Briefing on appeal was completed by January 1994. A few months later, the parties reached a global

settlement. The terms were not confidential; they included the following:

 Each of the five defendants would deliver a check for $6,000 to plaintiff’s counsel, made out

to counsel’s trust account;

 In turn, Holliday released the defendants and all of their affiliates from any claims arising

from their prior use of the video;

 Holliday granted a non-exclusive license to each of the defendants and to all of the past,

present and future affiliates, licensees, sublicensees, transferees, etc. of each defendant,

pursuant to which each of them was licensed “in perpetuity and throughout the universe” to

copy, display and/or air the videotape, and to prepare derivative works of that tape, “in any

media now known or hereafter invented,” and to sublicense any or all of those rights to

anyone.

Holliday’s appeal was dismissed by order of the Ninth Circuit on June 9, 1994.

CONCLUSION

In January 1994, the New York Law Journal mused that Judge Hill’s opinion “may have a greater

impact on American law than the incendiary criminal trials which stemmed from the incident.”

Charles J. Sanders, From the Zapruder Film to the Rodney King Video: Twenty-five Years of

Photography, Fair Use and the First Amendment, N.Y.L.J., Jan. 21, 1994 at p. 6. That didn’t happen,

in part because Judge Hill’s order granting summary judgment simply relied on and incorporated by

reference the 200+ page hearing transcript, and in part because that transcript was unpublished until

2016, when the authors of this article provided it to Westlaw and Lexis. As a consequence, the

opinion was virtually unknown to the legions of commentators who have written about the interplay

between the Copyright Act and the First Amendment, some of whom even mused in print about how

Judge Hill should have ruled on a First Amendment defense if it had been presented to him.

But even if Judge Hill’s opinion had been widely available to courts and scholars, it seems unlikely

that the opinion would have itself been transformative, in light of the extraordinary technological

transformations that have occurred over the past 25 years that Judge Hill could not have anticipated.

Surveillance cameras dot our streets, the majority of Americans have a camera at the ready at all

times, cops wear cameras, and their vehicles do too.

It is thus much less likely that an event of

extraordinary national importance would be captured only in a single video, and it is much more

likely that any such video would be widely shared on Twitter, SnapChat, Instagram and elsewhere in

a matter of minutes. And in part because of the ubiquity of cameras, video footage of a black man

being beaten, choked or shot by a police officer (whether justified or not) may have lost much of its

power to shock our consciences. Nevertheless, Judge Hill’s opinion deserves our attention and our

recognition as an overlooked First Amendment milestone.

Holliday initialed that provision, and the settlement agreement, before a notary.

See generally Jocelyn Simonson, Beyond Body Cameras: Defending A Robust Right To Record The Police, 104

Georgetown Law Journal (forthcoming 2016).